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Crown Car Wash of Hillsborough, Inc. v. Township of Hillsborough Planning Board

A-0307-03T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; ACCESSORY STRUCTURES; VARIANCES—Permission to erect a nonconforming accessory structure may be granted by variance only.

A property owner challenged a municipality’s planning board’s decision regarding an adjoining property. The board had approved a conditional use application to construct a car wash and expand the driveway to build a water basin on the adjoining property. Part of the property was located in a residential zone. The challenger argued that the planning board exceeded its authority by granting the conditional use application and that the application should have been referred to the zoning board for a variance. The lower court disagreed, ruling that a variance was not required and therefore the planning board had jurisdiction over the matter. The property owner appealed.

The Appellate Division reversed the lower court’s ruling that the planning board had jurisdiction over the application, holding that the proposed car wash and water basin were accessory structures to the property. It ruled that the water basin was nonconforming because it was going to be built on the part of the property that was in a residential zone and used for a commercial purpose. According to the Court, permission to erect nonconforming accessory structures may be granted by variance only. Consequently, it ruled that the applicants were required to apply for a variance to expand the driveway to build the water basin. The Court further held that the zoning board had jurisdiction over the application because it involved a deviation from a zoning ordinance.


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